On June 01, 2015, the Occupational Health and Safety Administration (“OSHA”) published a guide for employers which details best practices for allowing transgender employees access to “the most appropriate and safest [restroom] option for him or her.” OSHA’s best practices are not mandatory but rather are suggestions for an employer to follow in order to avoid potential liability. However, employers should be aware that under both California and Nevada law, it is mandatory that a transgender employee not be denied access to the restroom that he or she identifies with his or her gender.

Suggested Best Practices for Employers

Under OSHA’s best practices, no employee should be required to use a restroom that is segregated from those facilities used by other employees as a result of their gender identity or expression. Similarly, employees may not be required to use a restroom that is an unreasonable distance from the employee’s usual worksite. In order to avoid liability in this area, OSHA recommends the following options for employers:

– Single-occupancy, gender neutral (unisex) restrooms; or
– Use of multiple-occupant, gender neutral restroom facilities with lockable single occupant stalls.

Through the use of single-occupancy restrooms which are gender neutral, or multiple-occupancy restrooms with lockable single-occupancy stalls, an employer avoids the pitfalls of unintentionally discriminating against a transgender employee by denying access to the restrooms with which he or she is most comfortable, or requiring that employee to use segregated facilities from those used by other employees.

Guidance for Employers

It is important for employers to understand what transgender is and what it is not. Transgender is defined as the state where an individual’s internal gender identity is different from the sex that he or she was assigned at birth. Transgender does not necessarily imply any medical procedures or social changes. It is specific to the individual and his or her personal identity with one gender or another regardless of what gender he or she was assigned at birth.

Because transgenderism is internal, it can be difficult for an employer to ascertain whether an employee is genuine. However, according to OSHA’s best practices, employees should not be required to provide any medical or legal documentation of their gender identity in order to gain access to the restroom they are most comfortable using. Such restrictions may also lead to federal and /or state discrimination claims. Thus, an employer is best advised to not deny any employee access to the restroom that he or she feels most comfortable using. Employers in California and Nevada should also note that discrimination and harassment of an employee based on gender identity is prohibited in both states and can lead to civil liability.

OSHA’s best practices can be found at https://www.dol.gov/asp/policy-development/TransgenderBathroomAccessBestPractices.pdf